The new rule will need the approval of a federal judge, who declined the government’s request last year to expand detentions.
Homeland Security officials said the rule would eliminate a 20-day cap for detaining migrant children and create a new license regime that would make it easier for federal officials to expand family detention nationwide.
Officials said they do not expect to hold families more than two months — though the rule grants them the flexibility to hold families much longer. Officials said they hoped the threat of detention would send a powerful message to smugglers that bringing children to the U.S. border would no longer guarantee a family’s release into the country.
President Trump said Wednesday that ending the Flores settlement, together with increased enforcement in Mexico and construction of a border wall, “all comes together like a beautiful puzzle.”
“One of the things that is happening, when they see you can’t get into the United States — or when they see if they do get into the United States they will be brought back to their country — they won’t come,” Trump said in remarks to reporters Wednesday. “And many people will be saved.”
Although the rule is to take effect 60 days after it is issued, officials said the process could take much longer because U.S. District Judge Dolly M. Gee, who oversees the settlement, must review it. Lawyers for migrant children said they would oppose the rule change.
Carlos Holguín, one of the lead lawyers in the Flores lawsuit, said in a telephone interview that the regulations must match the spirit of the settlement and that holding children indefinitely in unlicensed facilities would not.
“The court will decide whether they’re consistent or not,” he said, but added, “We don’t have to be a rocket scientist to figure out that this administration wants to get rid of the Flores settlement precisely because the Flores settlement doesn’t allow it to do what it wants to do, which is to detain parents and children.”
Exercising greater control over family detention would be a coup for the White House, which has said the Flores agreement is among the most significant “loopholes” spurring mass migration. Trump, who called the Flores settlement a “disaster” during an April trip to the border in California, has pushed Congress and his own staff to eliminate it.
The White House maintains that smugglers are driving the record influx of Central American families by selling parents discounted trips to the U.S. border with Mexico and telling them to bring their children because the 20-day limit means they are likely to be released. Most are released to await hearings in the backlogged immigration courts, and they are rarely deported.
Advocates for immigrants counter that families are fleeing violence, hunger and poverty in Central America and should be released on bond or under orders of supervision until their cases are heard in the immigration courts.
Faith leaders, advocates for immigrants, teachers and lawyers slammed the Trump administration’s plan Wednesday. The Women’s Refugee Commission said the Trump administration “is intentionally harming children,” and theAmerican Civil Liberties Union called the proposal “yet another cruel attack on children.”
The congressional Hispanic Caucus and Democrats leading the House committees on the judiciary and homeland security swiftly called on the court to block the rule.
“The Trump Administration has managed to find a new low in its continued despicable treatment of migrant children and families,” Homeland Security Committee Chairman Bennie Thompson (D-Miss.) said in a statement, adding that the change “will allow the Administration to dramatically expand family detention and indefinitely lock up children.”
The Flores Settlement Agreement stemmed from a decades-old lawsuit over conditions for underage migrants, and it evolved as immigration policies changed. The agreement compels the U.S. government to transfer minors from border jails into state-licensed facilities as expeditiously as possible.
The agreement does not specify a time period, but after the Obama administration expanded family detention, Gee, whose judicial district is in California, ruled in 2015 that officials could not hold children in unlicensed facilities for more than 20 days, the time the government said it needed to process their cases.
Acting DHS secretary Kevin McAleenan said Wednesday that Gee’s ruling “upended” the Obama administration’s efforts to curb mass migration. Family apprehensions sank from 68,000 in 2014 to nearly 40,000 in 2015 but soared to record highs after her ruling.
More than 432,000 members of family units have been taken into custody from October through July, a 456 percent increase over the same period the year before, according to U.S. Customs and Border Protection.
Ending the Flores agreement would “eliminate the major factor fueling the crisis,” McAleenan said.
DHS officials said their goal is to resolve family cases within 60 days, triple the time children can be held now.
Officials said the new rule also addresses Gee’s concerns about licensed facilities by allowing the federal government to create its own licensing regime, complete with third-party inspections and audits that will be made public.
DHS officials said at a briefing Tuesday that detaining and deporting even a small fraction of the families, perhaps 5 to 10 percent of those apprehended, could send a powerful message to smugglers and would-be migrants in Central America.
U.S. Immigration and Customs Enforcement has three “family residential centers,” two in Texas and one in Pennsylvania, though one houses only adults at present. The facilities have a combined capacity of about 3,000 beds, but as of this week, fewer than 900 family members were in custody.
While Trump administration officials say they do not plan immediately to expand family detention, they have explored the possibility. Officials directed the Pentagon last year to identify sites with space for up to 12,000 beds for families.
Trump and his officials targeted the Flores agreement after their widely condemned “zero tolerance” policy last year failed to deter border crossings. The policy separated more than 2,700 children from their parents to prosecute the adults in criminal courts for crossing the border illegally. The children were sent to federally approved shelters.
In an order on June 20, 2018, Trump ended the separations and directed the attorney general to ask Gee to let the government detain families together “throughout the pendency of criminal proceedings for improper entry or any removal or other immigration proceedings.”
Gee declined, calling the move “a cynical attempt, on an ex parte basis, to shift responsibility to the judiciary for over 20 years of congressional inaction and ill-considered executive action that have led to the current stalemate.”
Officials rolled out the proposed replacement of the Flores rule in September and have noted that ICE family residential centers are more comprehensive than the austere Border Patrol holding facilities that have been seen in news reports and criticized by Democratic lawmakers. ICE family facilities have beds, classrooms for children, access to lawyers, health care, sports and cafeterias.
Advocates say, however, that detaining children increases their risk of trauma or illness. Several children have died after being taken into federal custody in the past year, and one of them died after being released from an ICE facility.
“These children are imprisoned,” said Amy Cohen, a longtime child psychiatrist and an expert witness for the Flores counsel. “You can bring a television and toys into prison, but it’s still going to feel like a prison.”